Boston Criminal Defense Lawyer Blog
If you have been charged with indecent assault and battery in Boston and the alleged contact happened in a setting where some touching was expected, such as a tattoo appointment, a massage, a medical exam, or any service that involves physical contact, a new Massachusetts Appeals Court decision changes how a jury can think about consent in your case. On April 28, 2026, the Appeals Court decided Commonwealth v. Benevides, affirming a conviction under M.G.L. c. 265, § 13H and clarifying that consent to a specific procedure is not blanket consent to any touching that follows.
Here is what that means in practical terms. In Boston indecent assault and battery cases, prosecutors no longer need to prove that the accused person heard a clear “no” before the alleged touching occurred. They can argue that the scope of consent was limited from the start. Attorney Patrick J. Murphy has defended these charges in Suffolk County district courts and the Boston Municipal Court for more than 27 years, and the ruling reshapes how you must approach these cases from the first interview forward.
What the Court Actually Held
The case involved a tattoo appointment in Leominster District Court. The accused was convicted of indecent assault and battery for two touchings during a tattoo session, contact with the client’s pubic area while applying ink and rubbing of the inner thigh after the tattoo was finished. The defense argued on appeal that by sitting for a tattoo on her thigh, the client consented to touching in that area, and that the Commonwealth had to prove she withdrew consent before the alleged indecent contact.
The Appeals Court rejected that framing. Drawing on its earlier decision in Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83 (2021), the court held that agreeing to a procedure means agreeing only to touchings that are necessary and appropriate for that procedure. Anything beyond that scope is outside the consent given. The Commonwealth does not have to prove withdrawal of consent for contact the client never consented to in the first place.
Where This Affects Defense Strategy in Boston
For a Boston criminal defense attorney handling a c. 265, § 13H charge in BMC, Roxbury, Dorchester, or any Suffolk County district court, this ruling shifts where the case is won or lost. Three pressure points stand out.
First, the necessity question becomes central. If the alleged touching was within the ordinary, professionally accepted scope of the service being provided, the defense has a real argument that no indecent contact occurred. Expert testimony about what is standard practice in a given trade, whether tattooing, massage, physical therapy, or medical care, may carry significant weight.
Second, the accidental or inadvertent contact defense remains intact. The opinion expressly notes that intent was not challenged on appeal. A Boston criminal defense attorney should be looking hard at whether the contact alleged was incidental to the procedure, not directed or sexualized. Witness statements, the physical setup of the room, and the timing of any apology by the accused can all bear on this.
Third, the absence of a “no” no longer protects the defense the way some practitioners assumed. Counsel must build the consent record from positive evidence, what the client agreed to, what was standard, what was incidental, rather than relying on the absence of an objection.
What Is at Stake
A conviction under c. 265, § 13H carries up to five years in state prison or up to two and a half years in the house of correction, plus mandatory sex offender registration under c. 6, § 178C. The collateral consequences are severe and lasting, affecting employment, housing, professional licensure, and immigration status. For non-citizens, a c. 265, § 13H conviction is generally treated as a crime involving moral turpitude with serious removal exposure.
Because of that exposure, decisions made early in the case matter. Whether to seek a clerk magistrate hearing where one is still available, how to handle any pretrial statement to police, and whether to retain experts on industry practice can all shape the outcome long before trial.
Contact a Boston Criminal Defense Lawyer
An indecent assault and battery charge that arose during a tattoo appointment, a massage, a medical visit, or any service involving physical contact is a case where early decisions matter. Police statements, the choice of whether to seek a clerk magistrate hearing, and the development of expert testimony on standard professional practice can change the trajectory of the case. Contact the Law Office of Patrick J. Murphy at (617) 367-0450 for a free consultation. We’re available 24/7 and offer services for Spanish-speaking clients. Attorney Murphy has defended criminal cases in Massachusetts courts since 1994 and has argued matters that produced published decisions of the Supreme Judicial Court.